Capacity: Judge
First appointed as judge: 1 June 2014 (Kwa-Zulu Natal)
Further Appointments:: KZN Judge President (October 2022)
Gender: Female
Ethnicity: African
Date of Birth: September 1975
Qualifications: B Proc (WSU) Postgraduate Diploma in Tax (UKZN) Cert. (Commercial Law) BLA Legal Education Centre)
Key judgments:
- Dlodlo v S (AR40/17) [2018] ZAKZDHC 16 (1 June 2018),
- Discovery Life Limited v Hogan 2021 (5) SA 466 (SCA) (11 June 2021)
- S v N 2016 (2) SACR 436 (KZP)
- M v Member of the Executive Council for Health KwaZulu Natal (4401/2014) [2016] ZAKZDHC 5 (15 February 2016)
- Hesse NO v Hlanganisani Construction CC (8963/2011) [2013] ZAKZPHC 36 (20 June 2013)
Candidate Bio:
Judge Thoba Poyo-Dlwati is currently a judge of the KwaZulu-Natal High Court and acting as deputy judge president of the division.
Poyo-Dlwati was born and bred in the rural village of eNgcobo. She matriculated from the Mount Arthur Girls High School in Lady Frere, and thereafter completed her B-Proc at the University of Transkei (now Walter Sisulu University).
She would later complete a Postgraduate Diploma in Tax from the University of KwaZulu-Natal, and in 2005 acquired a certificate in commercial law from the BLA Legal Education Centre.
In 1996 a young Poyo-Dlwati relocated from the Eastern Cape and settled in Pietermaritzburg, KwaZulu-Natal, where she took up a teaching post at MehlokaZulu High School. She also took up casual work at the Truworths clothing store in the city.
Poyo-Dlwati’s legal career started in 1997 when she did her articles of clerkship (candidate attorney) at Jenny Budree & Associates. She didn’t stay long and later ceded the rest of her articles contract to Hoskins & Ngcobo Attorneys. It is at this firm that Poyo-Dlwati’s career thrived, and she quickly rose through the ranks from professional assistant (associate attorney) in 1997, to director in 2000. Two years after her initial admission as an attorney, she became a conveyancer in 1999.
Joining forces with one of the partners of her former firm, Poyo-Dlwati would later establish her own firm, Ngcobo Poyo & Diedricks Attorneys in 2000, where she stayed until her appointment as a judge in 2014.
While juggling the demands of a busy attorneys’ practice and being a new mother, Poyo-Dlwati also played an active role in the affairs of the legal profession, in what can easily be described as an activist streak.
She joined the Black Lawyers’ Association’s Pietermaritzburg branch at the very comment of her legal career in 1997, and later became its secretary (1999) and chairperson (2003). She was also the secretary of the KZN branch of the SA Women Lawyers’ Association (2007 -2014), the vice president (2008-2010), and later president (2010 -2012) of the SADC Lawyers’ Association, representing the interests of lawyers from 16 Southern Africa.
Perhaps more importantly, she became the first black woman vice president (2003) and later president (2008) of the KZN Law Society, the legal regulator of the attorney’s profession in the province.
Poyo-Dlwati sat as an expert assessor in several criminal trials between 2003 – 2011 until she started acting as a judge of the KZN High Court in October 2012. She held at least 6 acting stints before being permanently appointed as a judge on 1 June 2014.
She joined the SA Chapter of the International Association of Women Judges in 2016, and was elected vice president in 2021, continuing her activist streak.
As a judge, Poyo-Dlwati has penned several judgments of significant public important and development of the law.
In the ground-breaking case of S v N, where a 32-year mother of two minor children who shot and killed her boyfriend and was subsequently convicted of murder, Poyo-Dlwati faced a difficult dilemma: how does a judge balance the interests of society in punishing the woman, versus the interests of the children which must be paramount, and which will be impacted by her incarceration?
Poyo-Dlwati held that the interests of society to punish crime demanded that the woman be imprisoned. However, leaving the children without their primary caregiver for a long period would not be in their interests. She therefore sentenced the woman to 5 years’ imprisonment and ordered that the children stay with an aunt in the meantime. The judgment has since been followed in subsequent cases and endorsed by sentencing expert Professor Stephan van der Merwe in Criminal Justice Review.
In M v MEC for Health (KZN), the mother of a new-born baby, Ms M, was informed that her daughter was blind as she had developed stage 5 retinopathy of prematurity (ROP). An eye disorder caused by abnormal blood vessel growth in the light-sensitive part of the eyes (retina) of premature infants. She believed that the doctors and nurses of the respondent had been negligent in treating her child and were therefore responsible for her blindness.
Poyo-Dlwati had to determine two issues. The first issue was whether the blindness of the baby was caused by the negligent conduct of the medical and nursing staff at the hospital during their treatment and care of the baby. The second issue was whether Ms M had been advised upon discharge that she had to take her child to an eye clinic to be screened for ROP, thereby preventing the ROP from developing to stage 5.
After considering the credibility, reliability, and probability of all the evidence presented, Poyo-Dlwati found that the hospital was negligent to have discharged Ms M instead of transferring her to another hospital to have the ROP screening done on her new-born baby.
Poyo-Dlwati also found that the negligent conduct of the doctors at the hospital in ensuring that acceptable oxygen saturation levels were maintained on the baby and their failure to advise Ms M of the appointment for ROP screening of the baby caused the baby to develop stage 5 retinopathy. As a result, the MEC was found liable for all Ms M’s proven or agreed damages arising out of the blindness of the new-born baby.
Poyo-Dlwati spent a year acting as a judge of the Supreme Court of Appeal from 1 June 2020 until 31 May 2021.
During her acting stint Poyo-Dlwati wrote the unanimous judgment in the tragic case of Discovery Life v Hogan, upholding the contractual principle of pacta sunt servanda (contracts validly entered into must be honoured). In the case, the parents of a young woman sued Discovery Life to try claim the late woman’s life insurance payout. Six weeks before her death, the woman cancelled her insurance policy via telephone and in writing, including reversing the debit order for the insurance premium payment.
The parents sought to enforce the insurance on the basis that Discovery had also sought to hold the woman to the contract, but also that Discovery failed to give the woman a 30-day grace period to remedy the debit order reversal. The High Court agreed with the parents and ordered Discovery to pay out the claim after they had remedied the late woman’s default in payment.
After careful examination of the facts, Poyo-Dlwati found that the late woman had indicated every intention to cancel the insurance contract and no longer be bound by it. Drawing on previous SCA precedent, Poyo-Dlwati found that such conduct by the late woman amounted to repudiation of the contract. Ultimately, she concluded that the insurance contract could not be ‘revived’ as the reason for the cancellation was not the non-payment but the late woman’s actions to cancel the contract through express communication to Discovery.
Judge Thoba Poyo-Dlwati is currently the Acting Deputy Judge President of the KwaZulu-Natal High Court, a position she has occupied since April 2022 with the retirement of former Judge President Achmat Jappie. She is also a judge of the Competition Appeal Court.
If appointed, Poyo-Dlwati would be the first woman Judge President of KZN, and one of the youngest and only woman head of court.
October 2022 Interview
October 2022 JSC interview of Judge Thoba Portia Poyo-Dlwati for the position of Judge President on the KwaZulu-Natal Division of the High Court. Judge Poyo-Dlwati’s application was successful.
